Sunday, November 27, 2005

Does New Hampshire's Parental Notification Law Open the Door to Forced Abortions?

In 2000, there were 250 abortions performed on a minor in New Hampshire. [<15 yo...20 procedures; 15-17 age group...230 procedures.]

The Supreme Court will consider whether to reinstate a New Hampshire law that requires parental notification 48 hours before an abortion can be performed on a minor.

I took a look at the text of this law, House Bill 763-FN, AN ACT requiring parental notification before abortions may be performed on unemancipated minors, and here are the three main problems I have identified: exemption, consent, and confidentiality.

First, the exemption problem. HB 763-FN allows for only one medical exception to the parental notification rule--the patient's imminent death ['cause that's the way to practice medicine: bring the patient to the brink of death, then intervene. And you people wonder why physicians have a God complex!]:

I. No notice shall be required under RSA 132:25 if:

(a) The attending abortion provider certifies in the pregnant minor's medical record that the abortion is necessary to prevent the minor's death and there is insufficient time to provide the required notice; or

(b) The person or persons who are entitled to notice certify in writing that they have been notified.

There is no exception in the law to address health of the mother....Such omissions in the law puts both the physician and the minor female at risk. Is it ethical for a patient with a serious health condition to have to wait until her health status becomes near death? Is it ethical for a physician to allow a serious health condition to adversely affect a pregnant patient because the condition is not life threatening?

Never mind ethics. What about the medical standard of care? Is the standard of care for a patient with a serious health condition to have to wait until her health status becomes near death? Is the standard of care for a physician to allow a serious health condition to adversely affect a pregnant patient because the condition is not life threatening? According to New Hampshire legislators, if the patient is a minor, and if the patient is female, and if the patient is pregnant, and if the patient wants to terminate the pregnancy, then, and only then, the answer is a resounding Yes!

Second, the issue of consent. HB 763-FN clearly spells out the reasons for enacting a parental notification law:

I. ...further[ing] the important and compelling state interests of protecting minors against their own immaturity, fostering the family structure and preserving it as a viable social unit, and protecting the rights of parents to rear children who are members of their household.

The problem is all these reasons apply equally to a pregnant minor carrying a pregnancy to term. If a minor's immaturity, fostering the family structure, and protecting the rights of parents to rear their children are the basis for requiring parental notification, this notification is needed for any pregnancy-related decision, period. Pregnancy outcome--termination, or carrying to term--is irrelevant. Actually, since carrying a pregnancy to term is orders of magnitude more dangerous for a pregnant minor than terminating a pregnancy, the State should have a stronger interest in requiring parental notification before a pregnancy may be carried to term. Except, it doesn't.

For pregnancy-related decisions, a pregnant minor is considered emancipated and can give consent. This is true in almost all the states. [A few states have no law on topic. New Hampshire is one of them.] The reason pregnant minors are allowed to consent:

The nature of these health issues is such that some minors would choose to go without treatment rather than seek parental consent (i.e., adolescents may not want parents to be aware of the problem). Allowing minors to give consent in these instances ensures unrestricted access to care for those who otherwise might have been deterred from seeking help (Brody & Waldron, 2000).

So, a pregnant minor can consent to carrying a pregnancy to term, despite immaturity, family structure, and the right of parents to rear their children. However, according to HB 763-FN, this same pregnant minor cannot consent to terminating a pregnancy because of immaturity, family structure, and the right of parents to rear their children.

Judge for yourself. According to the New Hampshire law, parental notification should be required based on the following five findings of "fact" [I used quotes because the Bill offers no studies to establish a) - e) as facts, as opposed to popular belief or the legislators' opinion]:

II. The legislature finds as fact that:

(a) Immature minors often lack the ability to make fully informed choices that take account of both immediate and long-range consequences.

If true, this applies equally to minors deciding to carry a pregnancy to term, or to terminate a pregnancy.

(b) The medical, emotional, and psychological consequences of abortion are serious and can be lasting, particularly when the patient is immature.

The consequences of carrying a pregnancy to term are far more serious and lasting vs. those of having an abortion [e.g., risk of death associated with abortion is about one-tenth that associated with childbirth].

(c) The capacity to become pregnant and the capacity for mature judgment concerning the wisdom of abortion are not necessarily related.

If true, this applies equally to the wisdom of carrying a pregnancy to term.

I hate to repeat myself, but, if true, this applies equally to carrying a pregnancy to term, and to terminating a pregnancy. In any case, while an accurate and complete history is always desirable and most helpful, it is by no means essential to the patient receiving appropriate care. Physicians routinely [I've done it more times than I care to remember] care for, and deliver pregnant teenagers without knowing any prenatal history whatsoever, with optimal outcomes.

(e) Parents who are aware that their minor daughter has had an abortion may better ensure that she receives adequate medical attention after the abortion.

They may, or they may not. Either we have data to back up this assertion, or we're just making reasons up as we go along. [And just to be clear, receiving adequate care after an abortion is independent of parental involvement; it's the standard of care.]

In the end, there is the medical, and logical, inconsistency of allowing a pregnant minor to consent to carrying a pregnancy to term, but not to terminating a pregnancy. But what I also find troubling is that the very reasons used to justify parental notification before an abortion may be performed--the minor's immaturity, and the right of parents to rear their children--are equally valid when used to justify forcing a minor to have an abortion. Given a pregnant patient, parents who want to protect their child from the increased health risks, up to and including the risk of death, associated with carrying a pregnancy to term, have to, and may very well choose to, force their minor child to abort.

Are we really prepared to legalize forced abortions? And who exactly is going to perform these forced terminations; the legislators? Perhaps lawyers, or judges?

Which brings me to the third problem with the New Hampshire parental notification law, namely physician-patient confidentiality. If you read the Bill, you'll noticed that it is the physician's responsibility to notify his/her patient's parents:

This bill prohibits any abortion provider from performing an abortion on certain minors or incompetent females without giving 48 hours' written notice, in person or by certified mail, to a parent or guardian.

But what if your patient, the pregnant minor, refuses to allow you to notify the parents? Well, then you are stuck.

You cannot breach confidentiality and contact the parents [as per my interpretation of HIPAA regulations; feel free to wade thorough the maze of rules on your own to figure out if breaching the confidentiality of a pregnant minor is a violation]. Unfortunately, neither can you go ahead and render appropriate medical care because you'd be violating the law.

The only option allowed by this Bill* is for you to go to court and petition a judge to allow you to practice medicine.

[*It's not clear from the text who exactly is entitled to petition the judge: II. If such a pregnant minor elects not to allow the notification of her parent or guardian or conservator, any judge of a court of competent jurisdiction shall, upon petition, or motion, and after an appropriate hearing, authorize an abortion provider to perform the abortion....]

Again, from the New Hampshire Medical Society:

There is no exception in the law to address...patient privacy. Such omissions in the law puts both the physician and the minor female at risk....Does the lack of privacy breach the Hippocratic Oath or violate federal HIPAA regulations?

[Good to know I am not the only one who finds HIPAA regulations unclear.]

And I couldn't help but notice this delicious irony [delicious, because playing politics with a minor patient's life is always a special treat]:

If said judge determines that the pregnant minor is not mature, or if the pregnant minor does not claim to be mature, the judge shall determine whether the performance of an abortion upon her without notification of her parent, guardian, or conservator would be in her best interests and shall authorize an abortion provider to perform the abortion without such notification if said judge concludes that the pregnant minor's best interests would be served thereby.

When it comes to performing a medical procedure, a physician, a trained medical professional, is not deemed competent to decide what would be in the best interest of his/her patient. On the other hand, a layperson, the judge, is.

Bottom line: The New Hampshire parental notification law would only apply to about 250 patients at any given time, and only to patients who happen to be female, and who have specifically elected the least dangerous medical option for their health. The law would expose minor patients to increased morbidity and mortality, and would force them to go without appropriate medical care unless, and until, their health deteriorates to the point where the only options left are treatment or death. Last, but not least, the rationale used for this law is equally valid when applied to justify forced terminations.

4 Comments:

I agree with your comments about the inconsistency of the logic regarding allowing a minor to make the decision to continue a pregnancy without parental notification but requiring parental notification for an abortion. But note, it is only notification, not consent, as would be required in any other medical treatment scenario.

Another concern that I have about the parental notification is that there seems to be an implicit assumption that the parents of a pregnant teenager are available for contact in an emergency situation. I would be curious to know how many of the pregnant minors have parents who have effectively left their children to their own devices, but have not yet been noticed by Child Protective Services (or whatever equivalent agency applies). And in a more benign sense, in the case of a medical emergency, what if it occurs while the parental units are unavailable, say having taken a trip for the weekend and left their daughter home as part of the natural steps in giving the teenager increased freedom? Okay, that might not happen all that often, but many of the scenarios cited in the various news discussions are talking about scenarios that are not necessarily frequent occurences.

One of my points is to question why oponents of parental notification differentiate between pregnancy related emergencies and any other emergencies. It is no more difficult to seek consent/notification for a pregnancy related emergency than any other, but we don't see anyone arguing that we should not need consent to treat for a 15 year old boy who has been in a car wreck.

MAW, I have had to contact a judge in the wee hours of the night for consent when I haven't been able to contact a guardian. It doesn't cause any significant delay in care. Besides, in a life and death emergency, any ER doc would act to stabilize the patient without regard to consent and then seek consent/notification for any further care.

drtony,The problem with getting a judicial bypass is that it assumes you don't live in a tiny town where going to court is the same thing as telling your parents. And it assumes you don't live in a state where anti-abortion activists sit outside the courthouse with high school yearbooks to identify and publicly expose all seeking abortions.

As for why I treat pregnancy related emergencies differently, it is because the law does. If a pregnant teen who is continuing her pregnancy has a pregnancy-related health complication, she can make independent decisions. But if a pregnant teen who is not continuing her pregnancy has a health complication, she cannot make independent decisions.